d. adam lazar (sbn 237485) adam keats (sbn …...d. adam lazar (sbn 237485) adam keats (sbn 191157)...

Verified Petition for Writ of Mandate

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D. Adam Lazar (SBN 237485) Adam Keats (SBN 191157) CENTER FOR BIOLOGICAL DIVERSITY 351 California St., Suite 600 San Francisco, California 94104 Telephone: 415-436-9682 Facsimile: 415-436-9683 [email protected] [email protected] Michael Robinson-Dorn (SBN 159507) UC IRVINE SCHOOL OF LAW ENVIRONMENTAL LAW CLINIC 401 E. Peltason Dr., Suite 4500-B Irvine, California 92697 Telephone: 949-824-1043 [email protected] Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO

CENTER FOR BIOLOGICAL DIVERSITY, NATIONAL PARKS CONSERVATION ASSOCIATION, SAN BERNARDINO VALLEY AUDUBON SOCIETY AND SIERRA CLUB, SAN GORGONIO CHAPTER Petitioners, vs. COUNTY OF SAN BERNARDINO, BOARD OF SUPERVISORS OF COUNTY OF SAN BERNARDINO, SANTA MARGARITA WATER DISTRICT, AND SANTA MARGARITA WATER DISTRICT BOARD OF DIRECTORS,

Respondents;

CADIZ, INC., ARIZONA AND CALIFORNIA RAILWAY COMPANY, CALIFORNIA WATER SERVICES COMPANY, FENNER VALLEY MUTUAL WATER COMPANY, GOLDEN STATE WATER COMPANY, JURUPA COMMUNITY SERVICES DISTRICT, SUBURBAN WATER SYSTEMS, THREE VALLEYS MUNICIPAL WATER DISTRICT AND DOES 1-40. Real Parties in Interest.

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Case No. VERIFIED PETITION FOR WRIT OF MANDATE (Cal. Code Civ. Proc. § 1094.5; Cal. Pub. Resources Code § 21000 et seq. (California Environmental Quality Act))

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INTRODUCTION

1. This action challenges the July 31, 2012 approval of the Cadiz Valley Water

Storage and Conservation Project (the “Project”) by the Santa Margarita Water District

(“SMWD”), through its Board of Directors, as recorded in a Notice of Determination and

SMWD’s certification of the Environmental Impact Report (“EIR”) for the Project.

2. Under the guise of a self-proclaimed "conservation” project, the Project would

mine millions of gallons of water a year—for 50 years—from a desert aquifer system in the

Mojave Desert. As proposed and approved, the Project would drain the aquifers at a rate far in

excess of the rate of natural recharge, with significant environmental harm. Returning the

aquifers to their current levels following the end of the Project may take centuries.

3. Petitioners, together with various governmental agencies at the state and federal

level, Native American Tribes, and concerned members of the public documented numerous

violations of CEQA during the administrative proceedings leading up to the certification of the

EIR and SMWD’s approval of the Project. Included among these violations is SWMD’s

usurpation of San Bernardino County’s (the “County”) proper role as lead agency for the

Project under the California Environmental Quality Act (“CEQA”), and SWMD’s failure to

properly prepare and certify a legally adequate EIR for the Project.

4. As described below, SMWD’s certification of the Project violated the California

Environmental Quality Act (“CEQA”), Cal. Public Resources Code § 21000 et seq., and the

CEQA Guidelines, title 14 California Code of Regulations, § 15000 et seq. (“CEQA

Guidelines.)”

5. This action also challenges the County of San Bernardino and its Board of

Supervisors for failure to act as lead agency for the Cadiz project under CEQA.

6. Because SMWD and San Bernardino County failed to comply with CEQA,

Petitioners petition this Court for a writ of mandate under Code of Civ. Proc. §§ 1085 and

1094.5, directing SMWD to vacate and set aside its approval of the Project and EIR

certification. Petitioners also petition for declaratory relief in the form of a finding that the

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County of San Bernardino is the proper lead agency for future environmental review of this

project under CEQA.

7. Petitioners’ have no plain, speedy, or adequate remedy in the course of ordinary

law unless this Court grants the requested writ of mandate to require Respondent SWMD to set

aside its certification of the EIR and approval of the project, and declares that San Bernardino

County is the proper lead agency. In the absence of such remedies, Respondents’ decisions

will remain in effect in violation of state law.

JURISDICTION AND VENUE

8. This Court has jurisdiction over this action pursuant to Cal. Code Civ. Proc. §§

1085 and 1094.5 and Pub. Resources Code §§ 21168 and 21168.5. This Court has the

authority to issue a writ of mandate directing SMWD to vacate and set aside its approval of the

Project and certification of the EIR for the Project under Code Civ. Proc. §§ 1085 and 1094.5.

9. Venue for the CEQA actions contained in this Petition properly lies in the San

Bernardino County Superior Court pursuant to Cal. Code Civ. Proc. § 395(a), because

Respondent County of San Bernardino and the Board of Supervisors of San Bernardino County

have their principal place of business in the City of San Bernardino, and additionally pursuant

to § 393(b), because the primary location of both the project and the majority of its associated

impacts is the County of San Bernardino. In addition, Respondents and Real Parties in Interest

reside throughout a four-county region, including San Bernardino County, making no other

location more appropriate or convenient.

PARTIES

10. Petitioner CENTER FOR BIOLOGICAL DIVERSITY (“The Center”) is a non-

profit, public interest organization with over 41,000 members and 280,000 online activists.

The Center has offices in Joshua Tree, Los Angeles, and San Francisco, California, as well as

offices in Arizona, Florida, New Mexico, Oregon, Vermont, and Washington, D.C. The Center

and its members are dedicated to protecting diverse native species and habitats through science,

policy, education, and environmental law. The Center’s members reside and own property

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throughout California as well as those areas served by the State Water Project, and use the

waters and lands affected by the proposed Project, including the Mojave National Preserve, for

recreational, wildlife viewing, scientific, and educational purposes. The Center was one of the

coalition of organizations that submitted timely comments to SMWD in response to the

December 2011 Draft Environmental Impact Report (“DEIR”) for the Project, and has

submitted letters to both Respondents explaining the improper choice of lead agency and

warning of problems and inadequate review of a subsequent contractual agreement (MOU)

between Respondents and Cadiz, Inc. The Center and its members would be directly, adversely

and irreparably harmed by the Project and its components, as described herein, until and unless

this Court provides the relief prayed for in this petition.

11. Petitioner NATIONAL PARKS CONSERVATION ASSOCIATION (“NPCA”)

is a non-profit, membership based advocacy group whose mission is to protect and enhance our

national parks for present and future generations. NPCA has over 100,000 active supporters

and members in California and over 600,000 nationwide. NPCA maintains offices nationwide,

including Joshua Tree and Barstow, California. NPCA, in collaboration with other petitioners

to this action, has actively opposed and provided substantive and timely written and oral

comments on the challenged Project. Many NPCA members live, work and recreate in San

Bernardino County and throughout the areas to be impacted by the Project. NPCA members

use, recreate and enjoy the 1.6 million acre Mojave National Preserve, the third largest national

park unit in the lower forty eight states, including its diversity of wildlife and plants, desert

springs and desert habitat, and visual beauty. The interests of NPCA, its staff and its members

in preserving the Mojave National Preserve and surrounding lands will be harmed by the Cadiz

project unless court action is taken and Petitioners’ requested relief is granted. .

12. Petitioner SAN BERNADINO VALLEY AUDUBON SOCIETY (“SBVAS”) is

a non-profit 501(c)3 organization of good standing. SBVAS is an independent organization

from the National Audubon Society, and maintains its own board, volunteer staff, membership,

policy and fundraising efforts. SBVAS is committed to protecting endangered species and

wild places, and in particular avian species, their habitats, and their sources of food. SBVAS

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has worked to protect the natural resources of California; the organization’s mission is to

educate the public as to the importance of the natural environment and to preserve habitat for

birds and other wildlife. SBVAS is specifically focused on promoting and protecting these

values in the Inland Empire region, which includes the Cadiz project site, its surrounding

habitat and the Mojave National Preserve. SBVAS was part of the coalition of public interest

organizations which provided timely comments in response to the December 2011 DEIR for

the proposed Project. The interests of SBVAS, its staff and its members in preserving the

desert habitat and wildlife will be harmed by the Cadiz project unless court action is taken and

Petitioners’ requested relief is granted.

13. Petitioner SIERRA CLUB, SAN GORGONIO CHAPTER (“the Club”) is a

chapter of The Sierra Club, a national non-profit membership organization committed to

protecting endangered species and wild places. The San Gorgonio Chapter of the Sierra Club

is based in San Bernardino, California. From its inception and for over a century, the Sierra

Club has worked to protect the natural resources of California, and has been a long-time

advocate for protection of the public wilderness lands surrounding the Cadiz project. The Club

has led community opposition to the Project since the project was originally proposed over a

decade ago, and continues to work with local communities in opposition. The Club was one of

the coalition of public interest organizations which submitted timely comments in response to

the current Project’s December 2011 DEIR, and members attended and spoke in opposition to

the project at SMWD’s July 2012 board meetings where the Cadiz FEIR was considered by the

SMWD’s board for approval. The Club, its staff and its members would be directly, adversely

and irreparably harmed by the Project, as described herein, until and unless this Court provides

the relief prayed for in this petition.

14. Respondent SANTA MARGARITA WATER DISTRICT (“SMWD”) is a water

district organized and existing under the California Water District Law, Cal. Water Code §§

34000 et seq., with its principle place of business in Rancho Santa Margarita, California,

providing retail water service to a mostly residential area of southern Orange County, located

over two hundred miles away from the Cadiz project site. SMWD acted as the lead agency for

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environmental review of the Cadiz project and Respondent SMWD BOARD OF DIRECTORS

approved the EIR in that capacity, as indicated in the Project’s July 31, 2012 Notice of

Determination.

15. Respondent COUNTY OF SAN BERNARDINO (the “County”) is a political

and geographical subdivision of the State of California with its principal offices located in the

town of San Bernardino, California. Respondent SAN BERNARDINO COUNTY BOARD

OF SUPERVISORS constitutes the elected decision-making body of the County empowered to

approve or disapprove projects under CEQA, and which entered into agreements with SMWD

and Cadiz regarding the County’s role in the Project. The Project’s pumps and the majority of

the Project’s anticipated environmental impacts lie within the County’s boundaries. The

County maintains the authority to permit and regulate the construction and development of the

Project. The EIR for the Cadiz project describes the County as a responsible agency under

CEQA.

16. Real Party in Interest CADIZ, INC. (“Cadiz”) is a company doing business under

the laws of the State of California with its principal place of business in Los Angeles,

California. Petitioners are informed and believe that (1) Cadiz is a Delaware corporation doing

business in California at all times relevant to this Petition, and (2) through its subsidiary Cadiz

Real Estate LLC, Cadiz Inc. owns approximately 34,000 contiguous acres of land in the Cadiz

and Fenner Valleys (Cadiz Property), upon which most or all of the Project’s pumping and

pumping-related infrastructure will be constructed.

17. Real Party in Interest ARIZONA & CALIFORNIA RAILROAD COMPANY

(“ACRC”) is a company existing as a limited liability partnership with its principle place of

business in Parker, Arizona. ACRC is a subsidiary of RailAmerica, a corporation listed on the

New York Stock Exchange with its corporate headquarters in Jacksonville, Florida.

Petitioners are informed and believe that ACRC is the owner and operator of the shortline

railroad that runs from Cadiz, California to Parker, Arizona, and that Cadiz has entered into an

agreement with the ACRC to utilize a portion of its right-of-way (“ROW”) for placement of

necessary infrastructure for the proposed Project.

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18. Real Party in Interest CALIFORNIA WATER SERVICES COMPANY is a

subsidiary of the California Water Services Group, a publicly-traded Delaware corporation.

CWS’ principal place of business is San Jose, California. California Water Services Company

was included as a participant in the Project EIR and is listed as a recipient of Project water in

the July 31, 2012 Notice of Determination.

19. Real Party in Interest FENNER VALLEY MUTUAL WATER COMPANY is a

California mutual water company describing itself as a non-profit entity, existing under the

laws of the State of California with its principal place of business in Los Angeles, California.

Petitioners are informed and believe that Fenner Valley Mutual Water Company was created

by Cadiz to distribute Project water and will be solely comprised of public water systems that

will own shares commensurate with their rights to receive water from the Project.

20. Real Party in Interest GOLDEN STATE WATER COMPANY (“Golden State”)

is a water company with its principal place of business in San Dimas, California. Golden State

Water Company is a wholly-owned subsidiary of American States Water Company, a publicly-

traded Delaware corporation also based in San Dimas. Golden State Water Company is

included as a Project Participant in the EIR, and is listed as a recipient of Project water in the

July 31, 2012 Notice of Determination.

21. Real Party in Interest JURUPA COMMUNITY SERVICES DISTRICT is a

public agency known as a Special District organized and existing under the California

Community Services District Law, Cal. Government Code §§ 61000 et seq., with its principal

place of business in Jurupa Valley, California. Jurupa Community Services District is

responsible for providing potable water, sewer and streetlights to over 101,000 people located

throughout 48 square miles in the Jurupa area of Riverside County. Jurupa Community

Services District was included as a project participant in the Project DEIR, is listed as a

recipient of Project water in the July 31, 2012 Notice of Determination, and is acting as a

responsible agency for the proposed Project’s environmental review.

22. Real Party in Interest SUBURBAN WATER SYSTEMS is an investor-owned

water utility doing business in the State of California with its principal place of business in

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Covina, California, and is a wholly-owned subsidiary of SouthWest Water Company, a

privately-held corporation based Sugar Land, Texas. Suburban Water Systems was identified

as a project participant in the Environmental Impact Report and is listed as a recipient of

Project water in the July 31, 2012 Notice of Determination.

23. Real Party in Interest THREE VALLEYS MUNICIPAL WATER DISTRICT is

a California Municipal Water District with its principle place of business in Claremont,

California. Petitioners are informed and believe that Three Valleys Municipal Water District is

a beneficiary of approval as listed on the Notice of Determination, was identified as a project

participant in the Project EIR, and is acting as a Responsible Agency for the Project’s

environmental review.

24. Petitioners are currently unaware of the true names and capacities of Does 1

through 20, inclusive, and therefore sue those parties by such fictitious names. Does 1 through

20, inclusive, are government or private entities presently unknown to Petitioners who will

receive Project water, or are otherwise beneficiaries of approval of the Cadiz Project, not listed

in the Project’s July 31, 2012 Notice of Determination. Petitioners will amend this petition to

show the true names and capacities of Does 1 through 20 when such names and capacities

become known.

25. Petitioners are currently unaware of the true names and capacities of Real Parties

in Interest, Does 21 through 40, inclusive. Does 21 through 40, inclusive, are persons or

private entities presently unknown to Petitioners who claim some legal or equitable interest in

the Project that is the subject of this action. Petitioners will amend this petition to show the

true names and capacities of Does 1 through 20 when such names and capacities become

known.

26. Petitioners bring this action as private attorneys general pursuant to Cal. Code

of Civil Procedure § 1021.5, and any other applicable legal theory to enforce important public

rights affecting the public interest.

GENERAL ALLEGATIONS

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27. The Cadiz Valley Water Conservation, Recovery and Storage Project (“Project”)

is a project to mine and export water from alluvial aquifers underlying the Mojave Desert, near

Cadiz, California, and transport Project water to multiple public and private water districts and

corporations in the greater Los Angeles region.

28. The Project was reviewed under CEQA with Santa Margarita Water District

(“SMWD”) acting in the role of lead agency. SMWD’s Notice of Determination was signed

July 31, 2012, and states that the Project will extract an average of 50,000 acre-feet (approx.

16.2 billion gallons) per year over a 50 year period. Physical infrastructure will include a well

field with up to 34 wells, and a 43-mile pipeline to the Colorado River Aqueduct.

29. The Project applicant is Cadiz, Inc. who, through its subsidiary Cadiz Real

Estate, owns the Project site, and will be the primary financial beneficiary. Cadiz has entered

into agreements to sell the Project water to Fenner Valley Mutual Water Company, who will

then re-sell the water to Project participants.

30. The Project also includes “Phase II,” which will consist of spreading basins to

recharge surface water into the groundwater basin and convey stored water back to

Participants.

The Original Project

31. A version of the Project was originally proposed as the “Cadiz Groundwater

Storage and Dry-Year Supply Program” in the late 1990’s, with the Metropolitan Water

District of Southern California (“MWDSC”) acting as lead agency under CEQA, and the

federal Bureau of Land Management acting as lead agency under the National Environmental

Policy Act.

32. The original project emphasized storage of Colorado River water, and only

intended to export water in “dry” years, but was nonetheless supported by applicant-funded

studies claiming the aquifers were naturally provided with 40,000 to 50,000 acre-feet per year

of water for recharge. The executive summary to the original DEIR further stated that the

project could export up to 150,000 acre-feet a year.

33. The original project’s studies of groundwater recharge were strongly disputed by

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multiple expert reports, including two by the United States Geological Survey. Expert

hydrologist Dr. John Bredhoeft, a former 32-year career scientist at the United States

Geological Survey (“USGS”), reviewed the existing studies, and concluded that recharge was a

small fraction of the applicant’s estimates, finding that the most probable range of recharge is

5,000-6,000 acre-feet per year.

34. MWDSC voted to cancel the previous Cadiz project in 2002. The Staff

Recommendation was that “further board action on the project be deferred” due to “uncertainty

over the availability of surplus water;” the “growing realization that significant quantities of

native groundwater may not be available for export;” the “demand for Colorado River water

supply… may reduce our flexibility to store Colorado River water;” “increased capital costs

above the $150 million estimate;” “the money that is planned to be spent on the Cadiz project

may be needed elsewhere to acquire water supplies that are not dependent upon surplus

Colorado River water and the availability of disputed local groundwater supplies;” and

“substantial financial risk.”

San Bernardino County Desert Groundwater Management Ordinance

35. The County of San Bernardino enacted its Desert Groundwater Management

Ordinance in October, 2002, less than two weeks after MWDSC cancelled the original project,

doing so specifically in response to the County’s inability to effectively regulate groundwater

exports, and to adequately monitor and protect against harm to the County’s aquifers.

36. The Desert Groundwater Management Ordinance, San Bernardino County Code

Article 5, § 33.06551 et seq., states that no person or entity shall locate, construct, operate or

maintain a groundwater export and/or storage project in the Cadiz project area absent a permit

issued pursuant to the ordinance, unless the project is exempted by (1) a Groundwater

Management Monitoring and Mitigation Plan (GMMMP), and (2) the County entering into a

Memorandum of Understanding (MOU) with the Applicant. (San Bernardino County Code §

33.06554(a).)

37. The Ordinance emphasizes the “particular importance” of protecting

groundwater in the Project area due to “relative lack of significant natural recharge in those

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areas” and the “lack of regulatory or judicial oversight of the groundwater aquifers.” (San

Bernardino County Code §§ 33.06551 (b)(2) and (3).)

38. The Ordinance prohibits issuing a permit unless the reviewing County authority

concludes that the project’s operation “would not result in exceeding groundwater safe yield of

the relevant aquifers.” (San Bernardino County Code § 33.06554(d)).

39. In 2007, Cadiz submitted a Desert Groundwater Management Permit application

for a project similar to the original project, but without MWDSC as lead agency. The 2007

application also included both storage of Colorado River water and export of water from the

aquifer only in dry or very dry years. The permit application included a statement that any

withdrawal of groundwater would be temporary and had to be replenished by importation of

Colorado River water. The County did not approve the 2007 permit application.

The Current Project

40. The current Cadiz Project was re-born in 2011 with SMWD as the lead agency.

MWDSC, which must still facilitate the transport of water for the Project, was not consulted as

a lead or responsible agency for the new Project’s DEIR, and has not promised to treat or

transport Cadiz water, despite both being necessary for exporting the project’s water.

41. The Project has not undergone review under NEPA.

42. While the original emphasized importing and storing Colorado River water, and

only exporting water in “dry” years, the current Project focuses on groundwater export and

demotes the import and storage of water to a secondary “program” role of the Project, to be

implemented at an undetermined later time.

43. The original project claimed that MWDSC would employ conservation, or water

saving measures, across its system in relation to the Project. The current Project claims that it

“conserves” water by exporting water for consumptive use that would otherwise evaporate

from the dry lakebeds overlying the aquifer. The Project’s alleged “conservation” does not

include a detailed analysis of the end-uses of the water beyond a presumption that it will be

“beneficially used.”

44. The 2011 Project DEIR was accompanied by a Groundwater Management,

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Monitoring and Mitigation Plan (“GMMMP”), which purports to meet the Project’s mitigation

and monitoring requirements, and claims to function to exempt the Project from the San

Bernardino County Desert Groundwater Management Ordinance in conjunction with a

Memorandum of Understanding entered into between Cadiz, SMWD and the County. The

GMMMP has not been approved by the County.

45. Petitioners provided detailed comments on the DEIR, identifying both legal

and scientific inadequacies with the Project, and included two reviews of the Project conducted

by expert hydrologists, detailing the shortcomings in their analysis of water supply. Other

commenters, including MWDSC and the National Parks Service, were also highly critical of

the project and its underlying studies. Petitioners’ comments included, but are not limited to

the following:

a. SMWD is the improper lead agency for the Project, and that the County is the

appropriate lead agency for the project;

b. SMWD failed to identify, include, and consult as required with required

responsible agencies;

c. The stated CEQA objectives for the Project are overly narrow;

d. The stated objectives and description of the Project are misleading;

e. The DEIR failed to adequately analyze the Project’s environmental impacts,

including but not limited to impacts related to biological resources,

threatened and endangered species, air quality and water quality.

f. The DEIR failed to provide substantial evidence in support of its conclusions

regarding the level of significance of the Project’s impacts and the efficacy of

proposed mitigation measures;

g. The DEIR improperly deferred impact analysis and development of

mitigation measures and appropriate thresholds;

h. The DEIR failed to consider a reasonable range of alternatives by, inter alia,

failing to give meaningful consideration to alternatives and rejecting without

adequate evidentiary basis reasonable alternatives that would meet most

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project objectives;

i. The DEIR failed to adequately analyze growth-inducing and cumulative

impacts; and

j. The DEIR was so fundamentally flawed as to preclude meaningful public

review, and should have been revised and recirculated with additional

information.

46. The Memorandum of Understanding referred to in the GMMMP was not

included in the DEIR or approved by SMWD or the County prior to the DEIR’s circulation.

However, in May, 2012, after circulation of the DEIR and the close of the comment period,

Cadiz, the County and SMWD entered into a Memorandum of Understanding (MOU) which,

in conjunction with the GMMMP, purports to exempt the Project from the County’s Desert

Groundwater Management Ordinance.

47. The MOU provided several terms for the Project whose definitions and use were

not fully disclosed or analyzed in the EIR or GMMMP, including “aquifer health,” “overdraft,”

“safe yield,” and “undesirable results.”

48. The MOU also indicated that the County would provide several key variables

necessary to determine safe yield, aquifer health and overdraft. Specifically, the MOU dictates

that the County must designate a minimum groundwater “floor” level and an acceptable “rate

of decline.” However, the MOU, the DEIR and the GMMMP do not include the County’s

findings regarding these variables.

49. The MOU identified San Bernardino County as a responsible agency for the

project and required the County to make a decision on whether to approve the Project within

90 days of SMWD’s certification of the Project EIR.

50. On May 31, 2012, the Center submitted a letter to SMWD and the County

objecting to the approval of the MOU, and identified several elements presented therein which

were inadequately discussed or omitted entirely from the DEIR and GMMMP. The Center, a

Petitioner, requested that the DEIR analyze the additional information contained in the MOU,

and then that the DEIR be re-circulated for public review with the additional information and

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analysis included. This request was repeated by Petitioners and other members of the public

during oral comments at the July 25, 2012 SMWD Board meeting.

51. SMWD did not recirculate the DEIR for review and comment. Instead, SMWD

released the Final Environmental Impact Report (“FEIR”) for public review on July 13, 2012

and scheduled a public hearing to consider approval of the EIR and project on July 25, 2012.

52. The National Park Service requested that SMWD delay approval of the FEIR

until it and other members of the public had sufficient time to review. The Park Service’s

request was not approved.

53. Hours of public comments, the vast majority of which indicated opposition to the

Project, caused the July 25 hearing to continue past midnight, resulting in the meeting being

continued to July 31, 2012. SMWD then approved the FEIR on July 31, 2012, and signed a

Notice of Determination (NOD) approving the Project on the same day. Petitioners are

informed and believe that the SMWD also approved the Project’s adopted findings and a

statement of overriding consideration at the July 31 meeting, as well as a revised GMMMP.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

54. Petitioners have exhausted all administrative remedies by submitting written and

oral comments and testimony on the Project to Respondent requesting compliance with CEQA,

including the completion of full and adequate environmental review. All issues raised in this

Petition were raised before Respondent by Petitioners, other members of the public, or public

agencies prior to approval of the Project.

55. Petitioners have complied with Cal. Public Resources Code § 21167.5 by prior

service of a notice upon Respondents indicating their intent to file this Petition. Proof of

Service of this notification, with the notification, is attached as Exhibit A.

56. Petitioners have elected to prepare the record of proceedings in the above-

captioned proceeding pursuant to Cal. Public Resources Code § 21167.6(b)(2). Proof of

Service of this notification, along with the notification, is attached as Exhibit B.

57. This Petition is timely filed in accordance with Cal. Public Resources Code §

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21167 and CEQA Guidelines § 15112..

FIRST CAUSE OF ACTION

Violation of California Environmental Quality Act (Cal. Public Resources Code § 21000 et seq.)

58. Petitioners hereby incorporate by reference each and every allegation set forth

above, inclusive.

59. The purpose of an EIR is to provide public agencies and the public in general

with detailed information about the effect which a proposed project is likely to have on the

environment. (Pub. Resources Code § 21061.)

60. An EIR must fully disclose and analyze all of the project’s potentially significant

environmental effects. (Pub. Resources Code § 21100(b)(1).)

61. The EIR should be prepared with a sufficient degree of analysis to provide

decision-makers with information which enables them to make a decision which intelligently

takes account of environmental consequences. (CEQA Guidelines § 15151.)

62. CEQA further requires the lead agency to adequately consider mitigation

measures and alternatives to the Project, to adopt all feasible mitigation measures and/or

alternatives, to determine that proposed mitigation measures will or will not be effective in

avoiding or substantially lessening the Project’s significant environmental impacts, and to

make an adequate statement of overriding considerations for those significant environmental

impacts deemed unavoidable. (Pub. Resources Code §§ 21002.1(b), 21100(b)(3); CEQA

Guidelines §§ 15092 and 15093).

63. CEQA contemplates an interactive process of assessment and responsive

modification that must be genuine. The lead agency must be able to substantially change or

disapprove the project through the CEQA review process; using CEQA as a post hoc

justification for a project is not permitted.

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64. For the following reasons, SMWD’s approval of the Cadiz project failed to

comply with CEQA, and was arbitrary and capricious, not supported by the evidence, and not

in accordance with applicable law:

Choice of SMWD as Improper Lead Agency

(Against SMWD and the County)

65. Under CEQA, the lead agency is required to prepare a complete and legally

adequate EIR prior to approving any discretionary project that may have a significant adverse

environmental effect. (Pub. Resources Code §§ 21100(a) and 21150).

66. CEQA defines “lead agency” as “the public agency which has the principal

responsibility for carrying out or approving a project which may have a significant effect on

the environment.” (Cal. Public Resources Code. § 21067.)

67. CEQA defines “local agency” as “any public agency other than a state agency,

board or commission.” (Cal. Public Resources Code § 21062.)

68. When two or more public agencies are involved with a project, “if the project is

to be carried out by a nongovernmental person or entity, the lead agency shall be the public

agency with the greatest responsibility for supervising or approving the project as a whole.”

(CEQA Guidelines § 15051(b).)

69. Cadiz., Inc., the Project applicant, is a publically-traded company. Cadiz has

been responsible for the Project’s financing and permitting, most of the Project pumping will

occur on or near Cadiz property, and Cadiz will be the primary financial beneficiary of the

Project. The Project requires at least one government approval, and qualifies as a Private

Project pursuant to CEQA Guidelines § 15377.

70. The lead agency “will normally be the agency with general governmental

powers, such as a city or county, rather than an agency with a single or limited purpose such as

an air pollution control district or a district which will provide a public service or public utility

to the project.” (CEQA Guidelines § 15051(b)(1).)

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71. The majority of the Project’s impacts, including but not limited to impacts to

water supply, water quality, air quality, and biological resources, will occur at or in the vicinity

of the Cadiz Project site located in eastern San Bernardino County.

72. The Project falls under the jurisdiction of the San Bernardino County Desert

Groundwater Management Ordinance, which requires that the County either issue a permit

authorizing the Project, or issue an exemption. The County’s approval of either the permit or

the exemption to the permit constitutes a “project” which is likely to have a significant effect

on the environment, and is therefore subject to CEQA environmental review process.

73. The County, in addition to sanctioning the Project pursuant to the Desert

Groundwater Management Ordinance, must also issue building and construction permits and

other municipal approvals for the project.

74. Further, as the public agency tasked with issuing a permit or exemption pursuant

to the County Desert Groundwater Management Ordinance, the County was required to act as

lead agency under CEQA for the permit or exemption.

75. The County did not act as lead agency for the project, permitting instead SMWD

to act as lead agency.

76. The County had multiple opportunities to assert its role as lead agency for the

Project, including but not limited to the 2012 MOU it entered into with SMWD and Cadiz,

requiring the County to make a decision on the Project in the capacity of responsible agency.

The County could also have petitioned the Office of Planning and Research for a determination

that it was lead agency pursuant to CEQA Guidelines § 15053, but did not.

77. Failure to act as lead agency severely constrained the County’s ability to assert

control over the environmental review, mitigation, monitoring, and enforcement aspects of the

Project and its future oversight, and circumscribed the County’s discretion to change, approve

or disapprove the EIR and GMMMP.

78. The County’s failure to assert its role as lead agency for the Project is arbitrary,

capricious and not in accordance with CEQA statute and guidelines.

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79. SMWD is a local agency in southern Orange County whose purpose is to supply

water to customers within its service area. SMWD has entered into a contractual agreement to

receive Project water, and will have its project-related costs reimbursed by Cadiz if it approves

the Project. Pursuant to California law, SMWD’s board of directors is elected by residents of

service area.

80. As a water district with limited purpose, servicing an area hundreds of miles

from the Project site, with a board elected by residents its service area, SMWD does not

possess sufficient regional perspective, scope of expertise, or accountability to San Bernardino

County and its residents sufficient to fulfill its role as Lead Agency for the Project. Further,

the Project is proposed by a non-government entity, SMWD will neither construct nor operate

the Project, and SMWD is not responsible for additional approvals for the Project outside of

CEQA.

81. Approval of the Project with SMWD acting as lead agency for the Project was

arbitrary, capricious and not according to law.

Failure to Properly Include Responsible Agencies

(Against SMWD)

82. CEQA defines a responsible agency as “a public agency, other than the lead

agency which has responsibility for carrying out or approving a project.” (Cal. Public

Resources Code § 21069.)

83. The term “responsible agency” includes all public agencies other than the lead

agency which have discretionary approval over the project. (CEQA Guidelines § 15381.)

84. MWDSC is a regional State agency providing wholesale water to districts

throughout Southern California, including Respondent SMWD.

85. The lead agency has a duty to consult with all responsible agencies prior to

deciding whether to prepare an EIR. (Cal. Public Resources Code § 21080.3), and is required

to notify all responsible agencies of its intent to prepare an EIR (Cal. Public Resources Code §

21080.4). The responsible agency then must respond with information about "the scope and

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content of environmental information that is germane to" its responsibilities. The responsible

agency must provide comments on the DEIR, including detailed performance objectives for

mitigation measures, or refer the lead agency to appropriate, readily available guidelines or

reference documents. (Cal. Public Resources Code § 21081.6 (c ).)

86. MWDSC owns and operates water pipeline infrastructure necessary to convey

Project water to its intended recipients, and to deliver water to and from the Colorado River

Aqueduct. MWDSC must approve the conveyance of Project water before its infrastructure

can be used to deliver water to the listed Project recipients and before the Colorado River

Aqueduct can be used. Therefore, MWDSC is properly a responsible agency for the Project.

87. MWDSC was not included as a responsible agency for the project when the

DEIR was circulated, so it could not provide the information required of it as a responsible

agency. The scrivener’s change in the FEIR, including MWDSC as a responsible agency, did

not provide MWDSC with sufficient reviewing and critiquing authority befitting a responsible

agency tasked with approvals fundamental to the project’s operation. Further, SMWD did not

provide a comment period for the FEIR and approved the Project shortly after the FEIR was

issued, so that MWDSC not assert a role as responsible agency at that late stage. The failure

to include MWDSC in an early stage of the Project’s environmental review foreclosed

fulfillment of what would have been MWDSC’s duties as a responsible agency in the review

process, which are greater than those of an interested member of the public.

88. The alteration to the surface of the dry lakebeds may require a streambed

alteration permit to be issued by the California Department of Fish and Game (“CDFG”) (Cal.

Fish & Game Code § 1602). CDFG should also have been included as a responsible agency

for the project.

89. The addition of imported water to the aquifer during Phase II of the project and

the addition of Project water to State Water Project may require a permit for waste discharge

requirements and/or a water quality certification issued by the State Water Resources Control

Board or a regional Water Quality Control Board. (California Water Code §§ 13160 and

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13260.) The Water Board or one of its regional agencies should have been included as a

responsible agency for the project.

90. The addition of Project water to State Water Project facilities requires

authorization from the California Department of Water Resources (“DWR”). DWR should

have been named as a responsible agency for the project.

91. SMWD’s failure to properly include MWDSC, CDFG, SWRCB (or regional

board) and DWR as responsible agencies in time to provide a meaningful critique and

recommendations for the EIR and GMMMP was arbitrary, capricious and not in accordance

with law.

Failure to Provide an Adequate Description of the Project and the Affected Environment

(Against SMWD)

92. CEQA requires an accurate, stable and finite project description of the proposed

project; the project description must “embrace the whole of the action” and include a

description of the entire scope of the project. (CEQA Guidelines § 15124.)

93. The EIR for the Cadiz project fails to provide an accurate, stable and finite

definition of the Project and the affected environment, and to describe the true scope of the

project, including but not limited to the following areas:

Project Title

94. The Project has a misleading and deceptive title. The title of the Project includes

the terms “conservation” and “storage” but the project “conserves” water by exporting it for

consumptive use, and claims to “store” water on an undetermined future basis. The title of the

project is intentionally misleading and prejudicial to accurate public review.

Project Objectives

95. CEQA requires a statement of objectives sought by the proposed project.

(CEQA Guidelines § 15124(b) and (d).) A clearly written statement of objectives in turn

assists the lead agency in creating a range of alternatives to evaluate in the EIR. (CEQA

Guidelines § 15124(b).) The statement of objectives should include the underlying purpose of

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the project. (Id.)

96. The EIR fails to provide complete or accurate project objectives and does not

accurately describe the purpose of the Project. The EIR states that the purpose of the Project is

to “conserve” water, but “conserve” is commonly used to mean save water, not to export it for

consumptive use. The EIR’s use of “conservation” as a main project objective is misleading, is

unsupported by the evidence and is not in accordance with law.

97. The EIR fails to accurately describe the size of the Project’s export component.

The project EIR and NOD claim the project will extract an average of 50,000 acre-feet per

year. However, there is no contract or agreement that specifies the amount of extraction. The

contracts referred to in the MOU to deliver water demonstrate a minimum commitment to

deliver Project water, but do not describe a maximum threshold. Additional contracts for

export of water could cause the Project to export more water without any set limit. The EIR

also claims that the project could export at least 75,000 acre-feet per year, and previous

versions of the Project have estimated export potential at 150,000 acre-feet per year. Further, it

is likely that implementation of Phase II will provide additional exports of Project water and

result in an increase in export capacity beyond 50,000 acre-feet. The finding that the project

will export an average of 50,000 acre-feet per year is arbitrary, capricious not in accordance

with law and unsupported by the evidence.

98. The EIR fails to adequately assess the duration of the Project: there is no

guarantee or reason why the project will only last 50 years as the EIR claims. The project may

be extended, and the EIR states as much: that the duration of the project depends on fulfilling

the Project’s contractual commitments. Yet the EIR does not provide an analysis of impacts

for extending the project. Failure to do so renders the EIR’s analysis of long-term impacts

inadequate, and its conclusions regarding impacts unsupported by the evidence.

99. The MOU contains a provision to deliver 20% or 25,000 acre-feet water to San

Bernardino and 30,000 acre-feet to Inland Empire Utilities Agency. Yet Inland Empire

Utilities Agency is not listed as a project recipient of approval in the EIR or NOD. It is further

unclear from the EIR whether this water would be in addition to or part of the average 50,000

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acre-feet already estimated by the project for yearly export. Failure to include or properly

analyze this term in the EIR, describing delivery of many thousand acre-feet of water to San

Bernardino and Inland Empire Utilities Agency, renders the EIR’s project description arbitrary

and unsupported by the evidence.

Legal and Regulatory Framework

100. CEQA requires a statement of the current legal and regulatory framework in

which the proposed project will be developed.

101. The EIR inaccurately describes the current regulatory framework within which

the Cadiz project must be considered. The EIR does not adequately acknowledge the degree of

approval required by MWDSC for use of its pipe infrastructure to both deliver water to the

proposed recipients, and to import the water from the Colorado River or State Water Project.

Illegal Segmentation of Project

(Against SMWD)

102. Although both “recovery” and “storage” are included in the Project title, the EIR

segments the export and import components of the Project into two parts, or “phases,” with the

“recovery” component analyzed in detail in the EIR (“Phase I”) , and the “storage”

component’s review only occurring on a general “program” level (“Phase II”). The EIR and

GMMMP do not estimate the amount of water which would be imported, nor does it assess the

likely impacts to water supply and quality resulting from implementing this part of the project.

103. Even though the Project does not appear to have a firm commitment to store

water, it frequently uses the storage concept as justification for its actions in Phase I, such as

the lowering of the aquifer due to “temporary surplus,” which the MOU describes as the water

which may be exported despite overdraft in order to reverse the flow gradient and/or create

space to store imported water.

104. The Project EIR is not a programmatic EIR and does not contain sufficient

details regarding the storage component of the project. The segmentation of the project is not

in accordance with the law and violates CEQA.

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105. The EIR fails include and adequately assess the environmental impacts

associated with export of the water through the MWDSC conveyance infrastructure—an

essential element of the Project. Instead, the EIR improperly segments this portion of the

Project be reviewed at some later date. By approving an improperly segmented EIR, SMWD

failed to proceed in a manner required by law, committed a prejudicial abuse of discretion and

acted arbitrarily and capriciously with respect to its approval of the Project.

Failure to Adequately Describe the Project’s Impacts

(Against SMWD)

106. CEQA requires that an EIR disclose and analyze all possible significant

environmental impacts of a proposed project. (Pub. Resources Code § 21100(b)(1) and CEQA

Guidelines § 15126.) The significant impacts should be discussed with emphasis in proportion

to the severity and probability of occurrence. (CEQA Guidelines § 15143.)

107. The EIR failed to address or inadequately addressed impacts, including but not

limited to the deficiencies described in the section immediately above and those enumerated

below. As a result, SMWD failed to proceed in the manner required by law and abused its

discretion by failing to fully disclose and analyze the Project’s environmental impacts,

including but not limited to the following:

Water Impacts: Recharge and Evaporation / Inadequate Analysis of Hydrological Impacts

108. During the comment period for the DEIR, the Petitioners, together with other

entities, including the National Park Service, explained in detail period that the hydrologic

studies relied on by SMWD are defective, in error, and significantly overestimate the amount

of recharge. The EIR inadequately assesses impacts to water recharge and evaporation for the

project. The EIR fails to adequately justify its conclusions when multiple previous studies of

the Project and its environment, including those by the USGS, the nation’s preeminent natural

science agency, estimated water recharge at a small fraction of the rate estimated by Cadiz’s

consultants. In fact, the EIR and supporting studies estimate recharge at a rate three to sixteen

times that provided by government and independent studies. The EIR and supporting studies

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appear to improperly use and rely upon computer models without adequate supporting field

data to support its conclusions, and improperly use groundwater flow models to estimate a

change in evaporation. The findings regarding recharge and evaporation are arbitrary,

capricious and unsupported by the evidence, and are directly contradicted by numerous studies

cited by multiple commenters.

109. The EIR fails to demonstrate that aquifer drawdown or overdraft (as defined by

common use, and not by the MOU) will not occur. The EIR fails to adequately substantiate its

claim that there would be no adverse impacts and no overdraft of the aquifer, and fail to refute

claims that the Project will cause a long-term depression in the aquifer, despite the fact that for

50 years or more the Project will deplete between 18,000 (according to SMWD’s own experts)

and 43,000 acre-feet per year of groundwater more than is recharged—and that assumes the

Project only pumps 50,000 acre-feet per year, when it is able to pump much more.

110. The EIR fails to adequately support its conclusion that export of the water will

eliminate or sharply curtail evaporation. The EIR proceeds from the assumption that extraction

of water below the dry lake beds will eliminate evaporation, but this conclusion is not

supported by the weight of the evidence. The EIR also does not adequately address whether

the evaporation rates will change if and when the aquifer is recharged with stored water. The

finding that exporting Project water will eliminate evaporation is arbitrary, capricious and

unsupported by the evidence.

111. The EIR assumes that evaporated water constitutes “waste” that is being

“conserved” by exporting Project water. However, water evaporating through the ground into

the natural environment is not wasted because it benefits soil structure, native plants, insects

and wildlife, and prevents soil erosion and negative air impacts. The presumption that

evaporated water in areas affected by the Project is “waste” is arbitrary and capricious and not

in accordance with law.

112. The EIR fails to adequately support its conclusion that the aquifer will be

sustainable or eventually recover from long-term Project water extraction operations. The

EIR’s analysis of depletion and recovery in the aquifer is arbitrary, capricious and not

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supported by the weight of the evidence.

113. The EIR fails to adequately support its conclusion that the Project will not affect

area springs. The finding that springs will not be impacted is based on a conclusion that the

target aquifer is not hydrologically connected to the springs. However, at least some springs

within the Mojave National Preserve do appear to be hydrologically connected. Without

detailed studies of the springs’ hydrologic connection, the EIR’s assumption of no harm to

springs is arbitrary, capricious and unsupported by the evidence.

114. Despite public requests for the information, SWMD and the EIR failed to

provide to the public all data and necessary information to assess and verify the models that

Cadiz’s experts used. As a result, members of the public and decision-makers were unable to

fully assess the validity of expert’s conclusions and thus the EIR’s conclusions, rendering

effective review of the EIR impossible. This failure to provide sufficient information to judge

the expert’s conclusions is a violation of CEQA’s public informational requirements.

Water Impacts: Mitigation and Monitoring

115. CEQA requires SMWD to adopt feasible mitigation measures in order to

substantially lessen or avoid the otherwise significant adverse environmental impacts of

proposed projects. (Cal. Pub. Resources Code § 21002.) SMWD is required pursuant to

CEQA to consider mitigation measures and alternatives to the Project, to adopt all feasible

mitigation measures and/or alternatives, to determine that proposed mitigation measures will or

will not be effective in avoiding or substantially lessening the Project’s significant

environmental impacts, and to make an adequate statement of overriding considerations for

those significant environmental impacts deemed unavoidable. (Cal. Pub. Resources Code §§

21002(b) and 21081.)

116. The EIR fails to properly consider reasonable mitigation measures for the

proposed project, including but not limited to: mitigation measures to prevent overdraft;

mitigation measures included for the prior Cadiz project(s), including a guarantee of replacing

all exported water; establishment and adequate monitoring of enough “early warning” wells

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(particularly when a limited number of such wells, though without adequate monitoring, have

been added to the GMMMP); an adequate monitoring program; an adequate enforcement

process; and mitigation measures that would reduce growth-inducing impacts to the Project

recipients.

117. The proposed mitigation measures adopted for the Project are inadequate to

address the potential significant impacts of the Project on water resources, including but not

limited to long-term aquifer drawdown. There is no substantial evidence the proposed

mitigation measures are adequate to prevent long-term harm to the affected aquifers.

118. The EIR improperly deferred formulation of specific mitigation strategies and

thresholds for action until after Project approval.

119. The EIR improperly relies on an incomplete and inadequate Groundwater

Management, Monitoring and Mitigation Plan (GMMMP) for mitigation and monitoring of the

Project. The GMMMP is not approved by the County and does not contain many important

details contained in the MOU, and yet the EIR defers proper analysis of the mitigation and

monitoring to this inadequate GMMMP. The County must still supply key variables for the

Project that are missing from the GMMMP and EIR, including the identification of a “floor”

groundwater level. Without determining the “floor” there can be no finding regarding

overdraft or safe yield. The missing variables from the EIR and GMMMP render effective

monitoring of the project virtually impossible.

120. The GMMMP was updated between the DEIR and FEIR and received new and

revised measures, which SMWD claims improves upon those included in the DEIR and draft

GMMMP. Petitioners strongly dispute the efficacy of these additions towards effective

mitigation and monitoring of the Project. In addition, these revisions would not change the

terms of the May, 2012 MOU signed by SMWD, the County and Cadiz regarding project

approval, monitoring and oversight.

121. In the FEIR, SMWD claimed it made major changes to the GMMMP. If true,

these changes merited detailed review by responsible agencies and the public. However,

SMWD gave the public only a few weeks to review the changes before approving the Project,

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not enough time for any concerned government agency or member of the public, including

Petitioners, to digest and suggest appropriate changes to the revised GMMMP. These agencies

include the County of San Bernardino, National Parks Service and MWDSC, whose interests

will be particularly impacted by the Project. The changes from the GMMMP in the DEIR to

the FEIR merited public re-circulation and the failure to do so violated CEQA’s requirement to

re-notice and re-circulate and EIR with substantial new information, and violates CEQA’s

public review provisions by attempting to pass substantial new measures without adequate

public review.

122. The EIR, GMMMP and MOU employ the concept of “temporary surplus” to

justify Project pumping beyond the amount where recharge is greater than extraction, which is

called “overdraft.” However, the Project re-defines “overdraft” to exist only when there is no

“temporary surplus.” “Temporary surplus” continues to shift meanings for the Project; before

it was justified to create space to import water from the Colorado River aqueduct or another

source, creating a “surplus” of water that must be exported in order to make way for the

imported water. In the current Project, the EIR claims that a “temporary surplus” is created by

the need to reverse the gradient or flow. However, the EIR and GMMMP state that the storage

portion of the project is now speculative, and the EIR and GMMMP does not adequately

estimate how much water would be required to be removed to reverse the gradient or flow.

Thus the determination of what constitutes “temporary surplus” seems to be at the whim of the

Project operator and a carte blanche to create harmful overdraft conditions. The EIR may not

justify a “temporary surplus” based on the expectation of water importation that is speculative

at best. The use of “temporary surplus” to drain the aquifer is arbitrary, capricious and


123. The GMMMP and MOU re-define “overdraft” as a ten-year average of

extraction, so that one must wait an entire decade before determining Project impacts on water

level. The ten-year wait for monitoring renders this aspect of the project ineffective and

threatens the health of the aquifer, failing CEQA’s mitigation requirement. The ten year delay

undermines the ability to monitor for “overdraft” conditions and is inadequately reviewed in

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the EIR.

124. The GMMMP and MOU re-define “safe yield” to mean not causing “overdraft”

or endangering “aquifer health.” Because of the way these different terms are defined, a “safe

yield” would be found even with a precipitous drop in aquifer levels, as such a drop would not

be considered “overdraft” when there is a finding of “temporary surplus,” and “aquifer health”

is not defined to include drawdown of the aquifer. It is further impossible to find whether there

is a “safe yield” from the Project when the County has supplied neither the groundwater

“floor” level nor the acceptable “rate of decline.” The convoluted definitions of “safe yield”

and associated terms and lack of key variables renders a “safe yield” determination in the

GMMMP and thus in the EIR arbitrary, capricious and unsupported by the evidence.

125. The GMMMP and MOU define “aquifer health” but exclude the water level

from the definition. Aquifer health is necessarily based on water level, among other factors.

Failure to include the water level in the “aquifer health” means that monitoring for “aquifer

health” does not return a negative finding when aquifer drawdown occurs, making the

monitoring ineffective.

126. The MOU defines “undesirable results” to include decline below a “floor” and

“rate of decline” to be set by the County. However, the County has not set this floor or rate of

decline in the EIR or GMMMP. Without first establishing the “floor” or “rate of decline” the

finding of “undesirable results” cannot occur, making it impossible for the lowering of the

water level to trigger “undesirable results.”

127. The relationship between the MOU and GMMMP’s definitions of “aquifer

health,” “safe yield,” “overdraft” and “undesirable results” is poorly described in the EIR,

making the document prejudicially defective in describing and analyzing the Project’s

monitoring program.

128. The MOU requires monitoring and reporting to go through numerous stages of

intermediate interpretation and multiple decision levels, which delay reporting and make

monitoring ineffective. Through the process defined in the MOU, the monitoring review

process is excessively controlled by Project participants and Cadiz, depriving adequate

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monitoring, review and enforcement opportunities to the County and concerned individuals.

129. The MOU requires disputes over aquifer health or other project aspects to be

subjected to binding arbitration. This provision deprives the County or other interested

member of the public an effective means of challenging aquifer drawdown or other impacts, as

a full review by an Article III court is precluded by the MOU. Arbitration is further limited by

first requiring findings of “overdraft” or “undesirable results,” which are either ambiguous or

re-defined by the MOU to inaccurately reflect the level of the aquifer. This makes it still more

difficult to seek a judicial remedy to aquifer drawdown, and also makes monitoring of the

project unenforceable. Requiring arbitration subject to the convoluted definitions of the MOU,

is both contrary to CEQA’s mitigation requirements and is inadequately described in the EIR.

130. The use of the above terms as defined in the MOU renders the monitoring and

mitigation of the Project ineffective and in violation of CEQA’s requirements to mitigate to a

less than significant extent and to effectively monitor for harm to the environment.

Water Impacts: Water Quality

131. The EIR fails to adequately discuss, analyze and the impact related having to

treat Project water extracted from the aquifer to reduce the levels of hexavalent chromium 6.

Data supporting the EIR and comments from MWDSC indicate that the levels of hexavalent

chromium 6 in Project water are substantially higher than current standards, as signaled by the

adoption of Public Health Goal of 0.02 ppb—the level of the element that does not pose a

significant health risk in drinking water. It is reasonably foreseeable that SMWD will be

required to treat Project water to significantly reduce the levels of hexavalent chromium 6

before Project water can be introduced into the CRA and the MWDSC system. The EIR fails to

analyze the environmental impacts associated with the need to build treatment facilities and the

removal of hexavalent chromium 6, instead deferring such analyses until some later date.

132. The EIR fails to adequately assess the impacts to water quality from storing

imported water from the Colorado River or other source in the Project aquifers. As a result of

improper segmentation of the Project, the EIR fails to assess the environmental impacts to

water quality, even though the storage component is included in the Project’s title and

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description. The EIR fails to adequately assess or attempt to mitigate the degradation of water

quality and potential violation of the state antidegradation policy. The failure to address water

quality impacts to the aquifer is arbitrary, capricious and not in accordance with law.

133. The EIR project fails to adequately assess impacts to water quality on the water

that would be transported through common infrastructure with Project water. Infrastructure

including the State Water Project and MWDSC pipelines will be required to deliver Project

water, but the EIR fails to adequately assess the addition of Project water to those supplies will

degrade the quality of the combined result. Failure to assess the impacts on water quality

through commingling sources during transport is arbitrary, capricious and not in accordance

with law.

Air Impacts

134. The EIR improperly assumes that dust and airborne soil will not increase due to

loss of soil moisture. However, if the soil is dried out by the Project though eliminating

evaporation, this will cause air impacts from increases in dust and airborne soil.

135. The EIR failed to provide substantial evidence that the amount of extraction

beyond recharge rates will not result in the creation of significant dust and related air quality

issues.

136. The EIR and GMMMP likewise failed to establish appropriate mitigation

measures and thresholds for action for air impacts.

137. The failure to adequately address the impacts to air quality is arbitrary,

capricious and unsupported by the evidence.

Biological Impacts

138. The EIR impermissibly underestimates the impacts of the Cadiz project on plants

and wildlife and their respective habitats, including but not limited to rare plants including

desert phreatophytes, the Desert Tortoise, the Mojave Fringe-Toed Lizard, the Desert Kit Fox ,

Badger, Burrowing Owl, Golden Eagle, Desert Bighorn Sheep, and cryptobiotic soils and

desert pavements. The EIR lacks adequate study of these populations and their dependence on

the current state of habitat surrounding the Project.

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139. The EIR fails to adequately analyze the impacts to sensitive wildlife from

potential loss of springs and loss of soil moisture due to (purportedly) lower evaporation rates.

140. The EIR fails to adequately assess the Project’s impacts on wildlife connectivity,

wildlife corridors and linkages.

141. The EIR fails to adequately analyze impacts to water, scenic resources and

biological resources within the Mojave National Preserve.

142. The EIR fails to include appropriate mitigation and monitoring plans for affected

plants and wildlife, and impermissibly defers preparation and analysis of such plans until an

undetermined future date. The EIR also fails to include appropriate translocation plans for the

Mojave Fringe-Toed lizard, an avian and bat protection plan, desert kit fox and badger “passive

relocation” plans, burrowing owl relocation and monitoring plan, and raven reduction plan.

143. The EIR’s failure to adequately address and mitigate impacts to plants and

wildlife, and to include the appropriate mitigation, monitoring and translocation plans, renders

the Project EIR’s evaluation of wildlife and biological resources arbitrary, capricious and


Climate Change

144. CEQA requires consideration of increases or decreases of greenhouse gases and

inducement of man-made changes to the earth’s atmosphere (“climate change”) due to

implementation of a proposed project. (CEQA Guidelines § 15064.4).

145. The Project fails to adequately account for climate change impacts, including

climate change-induced changes to rates of evaporation and recharge to the aquifer, and

impacts to the desert environment from a combination of climate change and the impacts of the

proposed project.

Growth-Inducing Impacts

146. CEQA requires that an EIR provide full analysis of ways in which a proposed

project could foster economic or population growth, or the construction of additional housing,

either directly or indirectly, in the surrounding environment. (Pub. Resources Code §

21100(b)(5) and CEQA Guidelines §§ 15126 and 15126.2.) Physical changes to the

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environment caused by economic and social impacts should also be considered as a significant

effect on the environment. (CEQA Guidelines 15164(e).)

147. The EIR fails to adequately assess the growth-inducing impacts caused by

enactment of the Project. The EIR mischaracterizes and underestimates the Project’s growth-

inducing impacts through providing a flawed analysis of the water use, assuming that because

the Project water may substitute for another supply that the water will not be growth-inducing,

even though the net amount of water available region-wide will increase by the amount of the

Project supply.

148. The EIR impermissibly defers full assessment of the Project’s growth

consequences to future assessments of local decision-makers.

149. The EIR fails to fully assess the growth-related impacts of the Project as required

by CEQA.

Cumulative and Indirect Impacts

150. CEQA requires that an EIR for a proposed project consider reasonably

foreseeable cumulative impacts from a project. (Pub. Resources Code §§ 21100 and CEQA

Guidelines § 15130.) The EIR fails to provide an adequate cumulative impacts assessment for

the Cadiz project.

151. The EIR does not adequately assess the cumulative impacts on the local area of

the pumping from the project.

152. The EIR does not adequately assess the regional impacts of delivering Project

water to the respective recipients of the water,

153. The EIR does not assess the reasonably foreseeable cumulative impacts

associated with combining Phase I impacts with storage of imported water (Phase 2 of the

Project), deferring unlawfully analysis to the future.

Alternatives

(Against SMWD)

Feasible Alternatives

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154. CEQA requires an EIR to examine a range of reasonable alternatives that would

feasibly obtain most of the project objectives, but avoid or substantially lessen any significant

adverse effects of the project. (CEQA Guidelines § 15126.6.)

155. SMWD erroneously rejects feasible alternatives as infeasible. To the extent that

a stated primary purpose of the project is to conserve water, alternatives to the proposed Project

would conserve water more efficiently, and with far fewer environmental impacts than the

approved alternative were rejected as infeasible. The EIR fails to adequately explain why the

chosen alternative is superior for meeting the conservation purpose of the Project. In addition,

the EIR provides no substantial evidence to support its exclusion of feasible alternatives.

156. The EIR failed to provide an alternative to the Project to provide users with a

reliable alternative source of water. There are many other alternatives to pumping at least

50,000 acre-feet per year from the aquifer for a purported “conservation” of wasted water.

157. Among several reasons that SMWD gave for rejecting reasonable alternatives as

infeasible was that the alternative would require an easement from the BLM. Contrary to

SMWD’s assertions, the chosen Project also requires approval from the BLM to utilize the

Railroad Right of Way. SMWD’s rationale for rejecting such alternatives requiring BLM

approval is arbitrary, and the inference that the approved project is not subject to BLM

approval is contrary to law.

Reasonable Range of Alternatives

158. CEQA requires that an EIR include a reasonable range of alternatives for a

proposed project that will foster informed decision-making and public participation. (CEQA

Guidelines § 15126.6.)

159. The EIR does not adequately consider Project alternatives that would achieve

conservation of groundwater at the same or greater degree than the chosen alternative.

160. The EIR does not sufficiently justify choosing the Project alternative through its

statement of overriding considerations.

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161. The EIR provides a limited and incomplete range of feasible alternatives to the

proposed project, including at least one alternative that inappropriately includes significant

portions of the proposed project.

162. The EIR improperly concludes that the alternatives described in the EIR have

similar impacts and outcomes as the proposed project, and does not provide alternatives that

are clearly distinguishable from the “no project” alternative and the proposed project.

163. The EIR’s project alternatives were impermissibly narrowed, so that only the

Project could qualify as a legitimate alternative. By making “saving” or “conserving” water

that the EIR incorrectly characterizes as being “wasted” a fundamental objective of the Project,

SMWD unlawfully limited the scope of the project and the reasonable alternatives that could

otherwise meet most of the Project’s key objectives. The failure of the EIR to analyze

reasonable alternatives is an error of law.

164. The EIR fails to analyze an alternative that avoids impacts to the region’s springs

and biological resources.

Inadequate Response to Comments

(Against SMWD)

165. SMWD failed to respond adequately to comments submitted by Petitioners, other

members of the public, and other agencies. Instead, the responses given to numerous

comments are conclusory, evasive, confusing, or otherwise non-responsive, contrary to the

requirements of CEQA. In particular, the EIR failed to adequately address comments that the

models used by Cadiz’ experts were likely to be overestimating recharge and evaporation rates

for the Project.

166. In addition, SMWD failed to provide an adequate rationale for rejecting

alternatives to the Project proposed by Petitioners and other commenting agencies and persons.

By failing to provide adequate responses to public comments and proposed alternatives,

Respondents failed to proceed in the manner required by law.

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Failure to Include Terms of MOU in EIR and to Recirculate EIR

(Against SMWD)

167. CEQA requires that an EIR must be re-circulated for additional public and

agency comment when significant new information is added after the EIR’s initial circulation.

168. SMWD failed to re-circulate the EIR despite the availability of significant new

information contained in the Memorandum of Understanding (MOU) entered into between

Cadiz, SMWD and the County after the DEIR was circulated and prior to certification

regarding the Project’s environmental consequences.

169. The failure to analyze the terms included in the MOU constitute a failure to

adequately review the Project, and to re-circulate a new EIR as required by CEQA.

CEQA Findings Not Supported By Substantial Evidence

(Against SMWD)

170. CEQA requires that an agency’s findings for approval of a project be supported

by substantial evidence in the administrative record and requires that an agency provide an

explanation of how the record evidence supports the conclusions that it has reached. (CEQA

Guidelines § 15091)

171. SWMD violated CEQA and failed to proceed in the manner required by law by

adopting findings that are inadequate as a matter of law in that they are not supported by

substantial evidence in the record, including, but not limited to:

172. The determination that alternatives to the Project that would avoid or lessen the

significant impacts are infeasible or otherwise not reasonable;

173. The determination that various mitigation measures that would avoid or lessen

the significant impacts of the Project are infeasible;

174. No substantial evidence supports SMWD’s findings adopted pursuant to CEQA,

including the findings that the project will produce less than significant environmental impacts,

even with the GMMMP implemented, and that water supply, water quality, climate change, air

quality, and biological resources have been mitigated to less than significant levels.

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Statement of Overriding Considerations Not Supported By Substantial Evidence

(Against SMWD)

175. Where no feasible mitigation measures or alternatives are available to avoid or

reduce a project’s significant environmental effects, CEQA allows an agency approving a

project to adopt a Statement of Overriding Considerations that describes how specific

overriding economic, legal, social, technological, or other benefits outweigh the significant

environmental effects.

176. In approving the Project and certifying the EIR, SMWD concluded that the

Project would result in significant unavoidable impacts. SMWD adopted a Statement of

Overriding Considerations, including findings that specific considerations make infeasible the

mitigation measures or alternatives identified in the EIR for the Project’s unavoidable

significant impacts and that economic, social, and other factors justify approval of the Project

despite these unavoidable significant impacts.

177. The Statement of Overriding Considerations inaccurately estimates impacts to

water supply, water quality, air quality and biological impacts. SMWD’s adoption of a

Statement of Overriding Considerations that purportedly justifies the Project’s significant

adverse impacts on the environment is not supported by substantial evidence and represents a

failure to proceed in the manner required by law. Similarly, the finding that no feasible

alternatives or additional mitigation measures exist to eliminate or reduce the remaining

significant effects is not supported by substantial evidence.

178. As a result of the foregoing defects, SMWD prejudicially abused its discretion by

adopting findings that do not comply with CEQA’s requirements and approving the Project in

reliance thereon. Accordingly, both SMWD’s certification of the EIR and SMWD’s approval

of the Project must be set aside.

PRAYER FOR RELIEF

WHEREFORE, the Petitioners pray for relief as follows:

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1. For alternative and peremptory writs of mandate, commanding SMWD:

(A) to vacate and set aside approvals of the Project;

(B) to vacate and set aside certification of the Final EIR for the Project;

(C) to suspend any and all activity pursuant to Respondents' approvals of the Project

that could result in an adverse change or alteration to the physical environment until all

requirements of CEQA and all other applicable state and local laws, policies, ordinances, and

regulations are complied with, as directed by this Court pursuant to Cal. Public Resources

Code section 21168.9;

(D) For a stay, temporary restraining order, preliminary injunction, and permanent

injunction prohibiting any actions by Respondents and Real Parties in Interest pursuant to

SMWD' approval of the Project and certification ofthe EIR for the Project until full

compliance is attained with all requirements of CEQ A and all other applicable state and local

laws, policies, ordinances, and regulations;

(E) For a declaration that SMWD's actions certifying the EIR and approving the

Project violated CEQA and the CEQA Guidelines, and that the certification and approvals are

invalid and of no force or effect;

(F) For a declaration that the County of San Bernardino is the proper lead agency for

the Project under CEQA;

5. For costs of the suit;

6. For attorney's fees pursuant to the Cal. Code of Civil Procedure § 1021.5; and

7. For such other and further relief as the Court deems just and proper.

DATED: August 30, 2012 Adam Keats D. Adam Lazar CENTER FOR BIOLOGICAL DIVERSITY

By: D~L\bs Attorney for Petitioners

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VERIFICATION

I have read the foregoing Petition for Writ of Mandate and know its contents.

I am the California Desert Field Representative for the National Parks Conservation

Association, which is a party to this action, and am authorized to make this verification for and

on its behalf, and I make this verification for that reason. I have read the foregoing document

and know its contents. The matters stated in it are true of my own knowledge except as to

those matters that are stated on information and belief, and as to those matters I believe them to

be true.

Executedon fh' 1v5}- Z<t ,2012, at -:fo5\..vt!'oo. \,~ , California.

I declare under penalty ofperjury under the laws of the State of California that the foregoing is

true and correct.

kcb Jk;w Seth Shteir National Parks Conservation Association

Verification

Exhibit

A

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1 PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

3 I am employed in the County of San Francisco, California as an active member ofthe

4 Bar of that State. I am over the age of 18 and not a party to the foregoing action. My business

address is 351 California St., Suite 600, San Francisco, CA. 94104. 6

On August 28, 2012 I served a true and correct copy of NOTICE OF 7

COMMENCEMENT OF CEQA ACTION on the Respondents to this action by placing a true 8

and correct copy thereof in a sealed envelope, addressed as shown below: 9

Santa Margarita Water District 26111 Antonio Parkway

11 Rancho Santa Margarita, CA 92688 Attn: Dan Ferons, General Manager

12 San Bernardino County

13 385 North Arrowhead Avenue 14 San Bernardino, CA 92415

Attn: Laura H. Welch, Clerk of the Board

16 [X] BY OVERNIGHT DELIVERY SERVICE via Federal Express to the offices of the

17 addressee(s). In accordance with Code of Civil Procedure § 1013(c), I am

18 readily familiar with my organization's practice of collection and processing correspondence

19 for mailing with Express Mail. Under that practice the correspondence would be

deposited at the Federal Express office on that same day in the ordinary course ofbusiness

21 with postage thereon fully prepaid at San Francisco, California. Such envelope was sealed

22 and delivered to the Federal Express office for collection and mailing following ordinary

23 business practices addressed to the address above.

24 Executed on August 28,2012 in San Francisco, California.

I declare under penalty of perjury under the law of California that the

26 foregoing is true and correct.

27

D. Adam r

Notice of Commencement of CEQ A Action Page 2

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Exhibit

B

Notice of Election to Prepare the Administrative Record

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D. Adam Lazar (SBN 237485) Adam Keats (SBN 191157) CENTER FOR BIOLOGICAL DIVERSITY 351 California St., Suite 600 San Francisco, California 94104 Telephone: 415-436-9682 Facsimile: 415-436-9683 [email protected] [email protected] Michael Robinson-Dorn (SBN 159507) U.C. IRVINE SCHOOL OF LAW 401 E. Peltason Dr., Suite 4500-B Irvine, California 92697 Telephone: 949-824-1043 [email protected] Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO

CENTER FOR BIOLOGICAL DIVERSITY, NATIONAL PARKS CONSERVATION ASSOCIATION, SAN BERNARDINO VALLEY AUDUBON SOCIETY AND SIERRA CLUB, SAN GORGONIO CHAPTER Petitioners / Plaintiffs, vs. COUNTY OF SAN BERNARDINO, BOARD OF SUPERVISORS OF COUNTY OF SAN BERNARDINO, SANTA MARGARITA WATER DISTRICT, AND SANTA MARGARITA WATER DISTRICT BOARD OF DIRECTORS,

Respondents;

CADIZ, INC., ARIZONA AND CALIFORNIA RAILWAY CO., CALIFORNIA WATER SERVICES COMPANY, FENNER VALLEY MUTUAL WATER COMPANY, GOLDEN STATE WATER COMPANY, JURUPA COMMUNITY SERVICES DISTRICT, SUBURBAN WATER SYSTEMS, THREE VALLEYS MUNICIPAL WATER DISTRICT AND DOES 1-40. Real Parties in Interest.

))))))))))))))))))))))))))))

Case No. NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD

(Cal. Pub. Res. Code § 21167.6)

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1 NOTICE OF ELECTION TO PREPARE RECORD

2 Petitioners Center for Biological Diversity, National Parks Conservation Association,

3 San Bernardino Valley Audubon Society, and Sierra Club, San Gorgonio Chapter, elect to

4 prepare the record ofproceedings in the above-captioned matter, or alternatively, to pursue an

alternative method of record preparation pursuant to Public Resources Code Section

6 21167.6(b)(2).

7

8 DATED: August 30, 2012 By:

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D. Adam Lazar 11

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Center for Biological Diversity

Attorney for Petitioners

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-1Notice of Election to Prepare Administrative Record

d. adam lazar (sbn 237485) adam keats (sbn …...d. adam lazar (sbn 237485) adam keats (sbn 191157)...

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